State v. Magee

313 Mont. 38

• Court: Montana Supreme Court
• Decided: July 18, 2002
• Docket: No. DC-2000-1
• Status: Published

Opinion

On July 17, 2000, the defendant was sentenced to the following: Count I (Burglary, a felony): Six (6) year conunitment to the Department of Corrections, with three (3) years suspended; Count II (Criminal Mischief, a misdemeanor): Two (2) year deferred imposition of sentence, to be served consecutively with Count I; Count V (Criminal Mischief, a misdemeanor): Two (2) year deferred imposition of sentence, to be served consecutively to Count I, but concurrently with Count II; and Count VI (Theft, a misdemeanor): Six (6) months in the Valley County Jail, all suspended, to ran concurrently with Count I.

On July 18, 2002, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by James Spangelo. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

The Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is clearly excessive. The reasons the Division believes this sentence is excessive is that it is the defendant's first felony conviction; it exceeds the agreement and recommendation of the prosecutor and the plea agreement and also the pre-sentence investigation report; and, in light of the defendant's age and other factors, the defendant would normally be considered for a deferred or suspended sentence. The suspended sentence is more appropriate than a deferred because of the multiple misdemeanors that were committed at or about the same time as the defendant committed these offenses. The judge who imposed the sentence was under a mistaken belief that two misdemeanor theft offenses had occurred subsequent to the offense for which the Cause No. DC-2000-1 defendant was being sentenced, when, in fact, they were prior to that and that information was not given to the sentencing judge at the time of sentencing.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended as follows: Count I: Six (6) year commitment to the Department of Corrections, with five (5) years suspended; the sentences in Counts II, V and VI shall remain as originally imposed.

Done in open Court this 18th day of July, 2002.

DATED this 13th day of August, 2002.

Chairman, Hon. David Cybulski; Member, Hon. Katherine R. Curtis and Member, Hon. Marc Buyske.